Florida Supreme Court Retracts Jury Unanimity Requirement, Reinstates Non-Unanimous Death Sentence

In a dramatic reversal made possible by changes in court personnel, the Florida Supreme Court has repudiated its prior decisions requiring that capital sentencing juries unanimously agree to the death penalty before a trial judge may sentence a defendant to death. “Our court … got it wrong,” the justices said, when it ruled in 2016 that death sentences imposed after non-unanimous jury recommendations for death violated the state and federal constitutions.

The court’s January 23, 2020 decision in State v. Poole reinstated a death sentence imposed on Mark Anthony Poole in 2011 after a non-unanimous jury had voted 11-1 to recommend the death penalty. Applying the court’s 2016 ruling in Hurst v. State, a Polk County trial court had overturned his death sentence and ordered a new sentencing hearing.

In its unsigned opinion, the court majority said that the Hurst decision had misunderstood the U.S. Supreme Court’s case decisions that had granted capital defendants the right to have a jury decide all facts necessary to impose a death sentence. The Poole court distinguished between aggravating circumstances — facts that make a defendant “eligible” to be sentenced to death — which must be found by the jury, and the “selection” of the ultimate sentence after the weighing of aggravating and mitigating circumstances. The latter, the court said, involved judgments of mercy that could not be considered a factual determination and did not require a unanimous jury vote.

Poole’s appeal lawyer, Julius Chen, called the court’s retroactive application of the change in the law “nothing short of astonishing” and said the defense was “carefully exploring avenues for further review” of the case. The ruling could reinstate the death sentences of dozens of Florida prisoners who, under the prior court decisions, were entitled to new sentencing hearings. Most of the resentencings that have already taken place have resulted in life sentences.

Justice Jorge Labarga issued a strong dissent, writing that the court “has taken a giant step backward and removed a significant safeguard for the just application of the death penalty in Florida.” “The majority,” he said, “returns Florida to its status as an absolute outlier among the jurisdictions in this country that utilize the death penalty. The majority gives the green light to return to a practice that is not only inconsistent with laws of all but one of the 29 states that retain the death penalty, but inconsistent with the law governing the federal death penalty.”

The court’s composition changed drastically in 2019 when three liberal and moderate justices reached mandatory retirement age and were replaced with conservative jurists. While the ruling in Poole does not directly affect the state’s current death sentencing statute, which was amended in 2017 to require jury unanimity, the opinion signaled the legislature that the new conservative majority would uphold legislative changes returning to the prior practice of permitting judges to override life recommendations or impose death in cases of non-unanimous jury votes.

Shalini Goel Agarwal, managing attorney for the Southern Poverty Law Center, sharply criticized the court’s decision. In a statement posted on the organization’s website, Agarwal said the court had “retreated on the critical requirement that only a unanimous jury can impose the death penalty …. Given the abundant evidence of wrongful convictions and racial disparities in death sentences, requiring a unanimous jury is fundamental to ensure fairness when exacting the ultimate penalty. There is no do-over after an execution. That is why unanimity must be the rule.”

Exoneration data suggests that states with capital sentencing statutes that permit judges to impose death sentences by overriding jury recommendations for life or after juries have returned non-unanimous recommendations for death may increase the risk of wrongful executions. More prisoners have been exonerated from Florida’s death row than in any other state. In 21 of the 23 exoneration cases in which the jury vote is known — more than 90% — some or all of the jurors had voted for life.